Court File and Parties

COURT FILE NO.: CV-17-583573-00CP DATE: 20210324

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LYNN WINTERCORN, PETER NEWMAN, EMILY FLAMMINI and ALEX KEPIC, Plaintiffs

AND:

GLOBAL LEARNING GROUP INC., GLOBAL LEARNING TRUST SERVICES INC. as TRUSTEE OF GLOBAL LEARNING TRUST (2004), ROBERT LEWIS, IDI STRATEGIES INC., JDS CORPORATION, ESCROWAGENT INC., JAMES PENTURN, RICHARD E. GLATT, DENIS JOBIN, ALLAN BEACH, MORRIS KEPES & WINTERS LLP, FASKEN MARTINEAU DUMOULIN LLP, CASSELS BROCK & BLACKWELL LLP, WISE, BLACKMAN LLP, EVANS & EVANS INC., GRAHAM TURNER, ROBERT KEPES, and MORRIS & MORRIS LLP, Defendants

BEFORE: Justice Glustein

COUNSEL: David Fogel, Kanwar Dhaliwal, and Tina Q. Yang, for the plaintiffs Jeffrey S. Leon, Ranjan K. Agarwal, Gannon G. Beaulne, and Nina Butz, for the defendants Allan Beach and Fasken Martineau DuMoulin LLP Shara Roy and Amy Sherrard, for the defendant Cassels Brock & Blackwell LLP Stephen Turk, for the defendant Robert Lewis Michael Tersigni, for the defendants Morris Kepes & Winters LLP, Morris & Morris LLP, and Robert Kepes Neil Rabinovitch and Michael Beeforth, for the defendants Richard E. Glatt, James Penturn, and IDI Strategies Inc. Emily Y. Fan, for the defendant Wise, Blackman LLP Caroline J. Smith, for the defendant Evans & Evans Inc.

HEARD: March 23, 2021

reasons for decision

[1] The plaintiffs bring two motions.

[2] First, the plaintiffs seek an order requiring Robert Lewis (Lewis) to be examined on behalf of Global Learning Group Inc. (GLGI) (the Lewis Motion).

[3] Second, the plaintiffs seek a further and better affidavit of documents (the Production Motion) from (i) Lewis, (ii) Cassels, Brock & Blackwell LLP (Cassels), and (iii) Allan Beach (Beach) and Fasken Martineau DuMoulin LLP (Fasken) (collectively, the Fasken Defendants).

[4] The parties met and consulted during the course of the hearing and agreed that:

(i) The Lewis Motion would be dismissed;

(ii) The portions of the Production Motion seeking production on the basis of the fraud and future crimes exception, waiver arising from posting the Cassels opinion, and litigation privilege would be dismissed; and

(iii) The parties will deliver written costs submissions. Each of the defendants seeking costs will deliver their submissions of no more than three pages by April 9, 2021 (not including costs outlines). The plaintiffs will deliver their responding submissions of no more than three pages for each of the defendants who seek costs by May 7, 2021 (also exclusive of a costs outline).

[5] The parties agreed that the dismissal of the Lewis Motion and the portions of the Production Motion were without prejudice to the plaintiffs raising those issues subsequently in the proceedings.

[6] The remaining issues on the Production Motion related to the production of additional Schedule A documents from the Fasken Defendants and Lewis, better descriptors of documents listed by Cassels and the Fasken Defendants, and production of a list of Schedule B documents by Lewis rather than a blanket assertion of privilege.

[7] I address these issues briefly below.

Production of Schedule A documents from the Fasken Defendants

[8] The Fasken Defendants produced no Schedule A documents in their affidavit of documents. Instead, all productions were listed as privileged in Schedule B.

[9] The plaintiffs sought production of (i) documents reviewed by Beach and Fasken to prepare the structure of the Gift Program, (ii) all trust ledger statements regarding GLGI, and (iii) documents associated with Escrowagent Inc.

[10] It may be that the Fasken Defendants have such documents in their possession. However, speculation is not sufficient. There must be evidence before the court of missing documents: Gamble v. Black & McDonald Ltd., 2020 ONSC 811, at para. 3. There is no such evidence on this motion.

[11] Further, the current claim of privilege by the Fasken Defendants over all documents must be determined before the requested documents can be ordered to be produced, even if evidence as to the existence of such documents becomes available on examination for discovery or otherwise.

[12] Once the privilege issues are decided by the court (certain of which have been dismissed from the present motions but can be brought back after examination for discovery and other privilege issues which may arise from the pleadings or evidence), the Fasken Defendants will be able to disclose documents from their lawyers’ file upon court order without breaching any duties otherwise owed due to solicitor-client privilege.

[13] Consequently, without any evidence and without the privilege issues resolved, I dismiss this relief sought by the plaintiffs without prejudice to the plaintiffs seeking such relief subsequently in the proceedings.

Production of Schedule A documents from Lewis

[14] There was evidence before the court (from extracts of documents produced by Howard Winkler) that Lewis had received funds from GLGI or the Gift Program, thus meeting the evidence requirement in Gamble.

[15] Further, the documents sought are not related solely to tracing funds obtained through an alleged constructive trust, but are also relevant to the allegation that Lewis took funds from GLGI for his personal enrichment when he knew that GLGI was a sham. The evidence as to alleged personal enrichment is relevant to the claims of unjust enrichment, conspiracy and knowing receipt, since the evidence as to funds taken by Lewis is a necessary element to establish those causes of action. Further, production of such documents is not disproportionate under Rule 29.2.03: Gamble, at para. 4.

[16] The remaining categories of additional production sought by the plaintiffs from Lewis relate to (i) all communications with Canada Revenue Agency (personally and on behalf of GLGI), (ii) personal and corporate tax filings related to the Gift Program, (iii) documents related to Lewis’ alleged participation in the Mariano tax appeal, (iv) communications with GLGI employees on fundraising, and (v) expenditures on behalf of GLGI.

[17] While some of these documents may exist, speculation is not sufficient. I dismiss the balance of the relief for further Schedule A documents from Lewis, since the required evidence is not before court.

[18] However, the plaintiffs may return to the court upon a proper evidentiary record which meets the Gamble test, provided that the plaintiffs can establish relevance of the documents.

Better descriptors of documents

[19] The plaintiffs objected to the descriptors of Cassels’ Schedule A and B documents since they did not set out the historical email chain information in the descriptors. By way of example, an email listed at document CBB0085265 did not set out, in the descriptor, that the document was an email initiated by another individual and then flipped on several occasions.

[20] I am satisfied that requiring Cassels to review each email and set out all of the email history is not a proportionate mechanism to ensure adequate production. The uncontested evidence is that all of the emails in the email history have been separately produced when available. Consequently, by reviewing the list of documents, the plaintiffs are able to follow the email chain without having to examine each “flipped” production individually.

[21] Similarly, for documents which contain privileged and non-privileged information, those “mixed” documents have been produced as Schedule A documents with the privileged excerpts redacted, so that the plaintiffs can still follow the email chain.

[22] The Fasken Defendants delivered no Schedule A documents, and advised the court that if required to produce Schedule A documents as a result of a subsequent court order, they expected to follow a process similar to that used by Cassels.

[23] Consequently, I am satisfied with the descriptors of the Schedule A and B documents, subject to further production arising from a subsequent court order.[^1]

Production of an itemized Schedule B list of documents by Lewis

[24] Lewis agreed that he was required to produce an itemized list of Schedule B documents, and I so order.

Costs of contested production issues

[25] With respect to any costs related to the production issues which did proceed before me, they are to be included in the written costs submissions to be delivered by the parties.

GLUSTEIN J.

Date: 20210324

COURT FILE NO.: CV-17-583573-00CP

DATE: 20210324

ONTARIO

SUPERIOR COURT OF JUSTICE

LYNN WINTERCORN, PETER NEWMAN, EMILY FLAMMINI and ALEX KEPIC

Plaintiff

AND:

GLOBAL LEARNING GROUP INC., GLOBAL LEARNING TRUST SERVICES INC. as TRUSTEE OF GLOBAL LEARNING TRUST (2004), ROBERT LEWIS, IDI STRATEGIES INC., JDS CORPORATION, ESCROWAGENT INC., JAMES PENTURN, RICHARD E. GLATT, DENIS JOBIN, ALLAN BEACH, MORRIS KEPES & WINTERS LLP, FASKEN MARTINEAU DUMOULIN LLP, CASSELS BROCK & BLACKWELL LLP, WISE, BLACKMAN LLP, EVANS & EVANS INC., GRAHAM TURNER, ROBERT KEPES, and MORRIS & MORRIS LLP

Defendants

reasons for decision

Glustein J.

Released: March 24, 2021

[^1]: The plaintiffs did refer to some documents of both Cassels and the Fasken Defendants that had a blank for the descriptor. Cassels and the Fasken Defendants agreed to attempt to co-operate in providing a descriptor upon receiving a list of blank descriptor documents from the plaintiffs.